MBNA court Activ Kapital

[AndyOrch]

Yes post here for checking.

[shamrocker]

Ok. Will so, thanks.

[shamrocker]

Hi Andy

 

For your reference my defence was as follows:

 

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant

entering in to an agreement referred to in the Particulars of

Claim ('the Agreement') with MBNA.

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant

defaulting' on the Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to or that

the claimant/original creditor served a valid Notice of Assignment. The

Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the

Claimant, and

(b) show how the Defendant has reached the amount claimed for, and

© show how the Claimant has the legal right, either under

statute or equity to issue a claim.

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that

the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt,

it is denied that the Claimant has the right to lay a claim due to

contraventions of Section 136 of the Law of Property Act and

Section 82A of the Consumer Credit Act 1974.

 

6. By reason of the facts and matters set out above, it is denied

that the Claimant is entitled to the relief claimed or any relief.

 

I think the draft directions you provided on the other thread fit in ok with my defence, but would appreciate you having a look to see if there are any obvious inclusions or omissions.

 

CLAIM NUMBER: XXXXXXX

IN THE *LOCAL COUNTY COURT*

XXXXXXXXXXXXXXXXXXXX

Claimant

XXXXXXXXXXXXXXXXXXXXX

Defendant

 

Draft Order for Directions

 

 

The Claimant shall send to the Defendant and to the Court:

 

- Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

 

- Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

- Document, contract or deed of assignment.

- Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 

- Copies of any statement or other document relied upon.

 

If the Claimant fails to comply with this order, the claim will be struck out without further order with costs in the case.

 

The Defendant shall thereafter file and serve the following:

 

- An amended defence sufficiently particularised in response to the documents supplied by the claimant.

Thanks so much.

Edited December 30, 2013 by Andyorch
Red hilighted should be removed

[AndyOrch]

You cant request the Deed of Assignment...that is privy to the assignor /assignee...only a court can compel they disclose it.

[shamrocker]

You cant request the Deed of Assignment...that is privy to the assignor /assignee...only a court can compel they disclose it.

 

So, take it out, yes?

 

Does everything else look acceptable?

 

I still have to go through the form properly yet so might have a question or two with regards to that, if you don't mind. The claimant has only answered certain parts and it doesn't appear that they have good reason to miss out certain questions that only require a basic yes or no answer.

[AndyOrch]

I have marked in red what I would remove. Rest is fine.

 

 

Regards

 

 

Andy

[shamrocker]

Hi Andy,

 

With regards to the direction - do I need to include the 'Draft Directions Order' same as that received by the claimant, or is the above sufficient on it's own?

 

It states on the bottom of the form that all proposed directionsfor fast track cases must be based on CPR Part 28.

[AndyOrch]

Just attach a copy of your proposed directions to the DQ (copy the claimant/court)

 

 

CPR 28 is standard rules relating to Fast Track re disclosure.

 

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part28

 

 

Regards

 

 

Andy

[shamrocker]

I received a letter from the court a couple of weeks ago stating that the claim was stayed until xxth Feb as we had both opted for mediation.

 

I still haven't heard anything since. Am I likely to hear anything or do I need to take the lead in the process?

[AndyOrch]

Its in both parties interest to mediate and either can start the ball rolling although in reality it should be the claimant...

[shamrocker]

Thanks Andy.

 

Is it uncommon for the claimant (well, the sort I'm dealing with anyway) to agree to mediation but not follow it up with anything. They've had well over two weeks now and I haven't heard a peep.

 

Do you think there's any gain for me to propose something? I'm quite happy to take them to the line on this, but it would probably suit all parties to find a middle ground.

 

They still haven't produced or mentioned the requested CCA as yet either.

 

Thanks again.

[AndyOrch]

Very rare they ever do...they just tick it on the DQ to go through the motions and and not to upset the courts or their costs.

I personally wouldn't bother if they were keen they would have approached by now.Just proceed to trial.

[shamrocker]

Ok, thanks.

 

Wit regards to trial, how soon can I expect that to take place from the stage we are at? Only so I can have a rough idea in my head in order to try fit in enough time for preparation.

[AndyOrch]

How long is a piece of string..depend on your local county courts work load.....1 month ..2 month ?

 

Check your paperwork there may be further instructions in the event that mediation failed or even a trial date already set.

 

Regards

 

Andy

[shamrocker]

Hello Andy

 

I received a 'without prejudice' letter from AK's solicitor a few days ago offering a reduced sum (to save costs) full and final settlement - the reduction is around 12% less than the claimed figure on the court form. They reserve the right to disclose the letter to the court on the question of conduct, etc.

 

Is this a standard offer in your experience or just another box ticked with regards to best practice in the eyes of the Courts?

 

This reduction would not be particularly appealing to me at the best of times, and I was quite prepared to see things through to court anyway given that I still have not received anything that even resembles a CCA. Obviously, I would rather avoid the trip to court, but they would need to come up with a reduction of at least 60% and an acceptable arrangement for payment before it would be viable for me to consider it.

 

I would be grateful if you could offer your opinion on what position this leaves me in, plus possible options with regards to a suitable response.

 

Many thanks!

[lukeman]

Hi Shamrocker,

 

 

I am quite familiar with dirty tactics by AK and I am sure they would have produced the CCA by now if they had it.

 

 

But still tread with caution.

 

 

Anyhow even if they fail to respond to your CCA request they will have to send you once you reach the disclosure stage or otherwise inform you and the court they don't have it.

 

 

Personally I think you have nothing to lose now by sticking to your guns until you reach the disclosures.

 

 

Until then they will try to bully and threaten you.

Edited February 19, 2014 by lukeman

[shamrocker]

Thanks lukeman. Nice to hear from you again!

 

I will sit tight for a minute to wait for Andy's advice before responding to them. Will keep you posted.

[AndyOrch]

I suppose it is an attempt at mediation...its your call your decision..you could respond in the same style (WP) and state that you would be willing to pay £ x or possibly consider a Consent Order if your proposed offer was not acceptable.

 

Regards

 

Andy

[shamrocker]

Thanks Andy. To be perfectly honest, I have zero remaining cash on a monthly basis to pay them anything at the moment but, without going into detail, I am hopeful that I will be able to afford something in a few months time.

 

In light of that, what would the implications of a consent order be?

 

The key factor for me is making any repayments affordable, even if it's over a long period of time. Whether that would be acceptable is another matter, but they also have yet to prove the debt exists, so I can still take them to the wire on that account.

 

Thanks again!

[shamrocker]

Hello again. Just a quick question.

 

This case has been set for trial now and a date set. The judge has asked that disclosure of documents be made by a specified date. It states:

 

"Each party shall give to all other parties standard disclosure of documents by serving copies together with a disclosure statement by...date"

 

In the directions questionnaire, the claimant stated 'standard directions as per attached draft order'. It does not specifically request disclosure of anything from me.

 

Therefore, how should I deal with this?

[AndyOrch]

Standard Disclosure is completed using the following:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?421287-LEGAL-N265-Standard-Disclosure

 

As the defendant you need only complete the section after the signature boxes.Your disclosure would be anything you wish to rely on within your defence/witness statement....such as CPR/CCA requests & responses etc.

 

Regards

 

Andy

[shamrocker]

Thanks Andy.

 

I previously sent a CCA request after receiving the claims form. Nothing was ever received other than to say they could not locate it at the moment. So, copies of this correspondence is what I should send...right?

 

I don't know how it affects matters, but I have in recent days received the disclosure from the claimant and it does include a signed and dated CCA, albeit it's a barely legible copy. There aren't t&cs with it though.

 

I'd appreciate your comments on the above.

 

Thanks again.

[shamrocker]

Sorry Andy - further to the above, should I send the disclosure to the claimant, to the court, or to both?

 

What purpose does this serve? I presume it is to prove that I have requested the documentation that my defence relies upon from them?

[The Mould]

Thanks Andy.

 

I previously sent a CCA request after receiving the claims form. Nothing was ever received other than to say they could not locate it at the moment. So, copies of this correspondence is what I should send...right?

 

I don't know how it affects matters, but I have in recent days received the disclosure from the claimant and it does include a signed and dated CCA, albeit it's a barely legible copy. There aren't t&cs with it though.

 

I'd appreciate your comments on the above.

 

Thanks again.

Does the default notice (“DN”) relied upon by the Claimant comply with s.87(1) CCA 1974 (as amended) (“the Act”)?

 

 

I have read the entirety of your case as reported here and I ask the above question because if the DN does not comply with said statutory requirements of the Act, then the Claimant is not entitled to proceed to enforce the agreement upon which he relies against you.

 

 

I have also noted that you failed to argue in your Defence proof of service as regards the assignment of the agreement which is a provision of s.196 of the Law of Property Act. Further, if you deny any allegation, as the Defendant, you are required to state the reason(s) for such denial, it appears to me that you have not done so in your Defence statement.

 

 

You should also note that s.65 CCA 1974 (as amended) provides that the Court can Order that an improperly executed agreement can be enforced, therefore, your argument in this respect is wholly unrealistic and will fail because you clearly had an agreement with original creditor whereby sums of money/credit were extended to you (you have admitted this in your Defence statement).

 

 

I do not wish to be the bearer of any bad news (any fellow Cag member will tell you that), however, you must accept that you do not have a valid Defence against this claim.

 

 

An invalid default notice is your only saving grace (although this will not extinguish any debt actually owed, it will bring an end to these proceedings and thereby relive you of any liability for Claimant’s costs incurred to as of the date such are struck out/discontinued/withdrawn) and non-compliance with s.196 Law of Property Act 1925 (again, any debt owed, will still be owed). I would suggest that you contact the Claimant and try to resolve the matter by way of monthly payments (on the debt actually owed) that are within your means.

 

 

In answer to your question, if you are going to continue with your submitted Defence against this claim, your Standard Disclosure List ought to be sent as one copy for Court’s file and one copy to all other parties.

 

 

Godzilla

 

 

Kind regards

 

The Mould

[shamrocker]

Hi The Mould

 

Thanks for that. I have read many of your contributions on the forum previously and am happy to accept your advice.

 

My defence was constructed based on the well intended advice received here on the forum. I had no previous experience of this process so was rather naive with regards to the various aspects of the claim - e.g "proof of service as regards the assignment of the agreement".

 

If I'm stuffed then so be it. I will just have to deal with it as best I can. However, you mention compliance of the DN issued - can you guide me on this? How should I tell if it complies?

 

Look forward to hearing from you.

Edited May 30, 2014 by shamrocker
typo